§ 5.12 - Debarment proceedings.

§ 5.12 Debarment proceedings.

Cross Reference

Link to an amendment published at 88 FR 57741, Aug. 23, 2023.

(a) Debarment standard and ineligible list.

(1) Whenever any contractor or subcontractor is found by the Secretary of Labor to be in aggravated or willful violation of the labor standards provisions of have disregarded their obligations to workers or subcontractors under the Davis-Bacon Act, any of the other applicable statutes listed in referenced by § 5.1 other than the Davis-Bacon Act, , this part, or part 3 of this subtitle, such contractor or subcontractor or any and their responsible officers, if any, and any firm, corporation, partnership, or association in which such contractor, subcontractor, or subcontractor responsible officer has a substantial an interest shall will be ineligible for a period not to exceed 3 years (from the date of publication by the Comptroller General of the name or names of said contractor or subcontractor on the ineligible list as provided below) to receive any contracts or subcontracts subject to any of the statutes listed in of 3 years to be awarded any contract or subcontract of the United States or the District of Columbia and any contract or subcontract subject to the labor standards provisions of any of the statutes referenced by § 5.1.

(2) In cases arising under contracts covered by the Davis-Bacon Act, the Administrator shall will transmit to the Comptroller General the names name(s) of the contractors or subcontractors and their responsible officers, if any (, and any firms, corporations, partnerships, or associations in which the contractors, subcontractors, or subcontractors responsible officers are known to have an interest), who have been found to have disregarded their obligations to employeesworkers or subcontractors, and the recommendation of the Secretary of Labor or authorized representative regarding debarment. The Comptroller General will distribute a list to all Federal agencies giving the In cases arising under contracts covered by any of the applicable statutes referenced by § 5.1 other than the Davis-Bacon Act, the Administrator determines the name(s) of the contractors or subcontractors and their responsible officers, if any, and any firms, corporations, partnerships, or associations in which the contractors, subcontractors, or responsible officers are known to have an interest, to be debarred. The names of such ineligible person persons or firms , who shall be ineligible will be published on SAM or its successor website, and an ineligible person or firm will be ineligible for a period of 3 years from the date of publication of their name on the ineligible list, to be awarded any contract or subcontract of the United States or the District of Columbia and any contract or subcontract subject to the labor standards provisions of any of the statutes listed in referenced by § 5.1.

(b) Procedure.

(1) In addition to cases under which debarment action is initiated pursuant to § 5.11, whenever as a result of an investigation conducted by the Federal agency or the Department of Labor, and where the Administrator finds reasonable cause to believe that a contractor or subcontractor has committed willful or aggravated violations of the violations which constitute a disregard of its obligations to workers or subcontractors under the Davis-Bacon Act, the labor standards provisions of any of the other applicable statutes listed in referenced by § 5.1 (other than the Davis-Bacon Act), or has committed violations of the Davis-Bacon Act which constitute a disregard of its obligations to employees or subcontractors under section 3(a) thereof, the Administrator shall , this part, or part 3 of this subtitle, the Administrator will notify by registered or certified mail to the last known address or by any other means normally assuring delivery, the contractor or subcontractor and its responsible officers, if any (, and any firms, corporations, partnerships, or associations in which the contractor or subcontractor contractors, subcontractors, or responsible officers are known to have a substantial an interest ), of the finding.

(i) The Administrator

shall

will afford such contractor

or

, subcontractor, responsible officer, and any other parties notified an opportunity for a hearing as to whether debarment action should be taken under paragraph (a)

(1)

of this section

or section 3(a) of the Davis-Bacon Act

. The Administrator

shall

will furnish to those notified a summary of the investigative findings.

(ii) If the contractor

or

, subcontractor, responsible officer, or any other parties notified wish to request a hearing as to whether debarment action should be taken, such a request

shall

must be made by letter

postmarked

or by any other means normally assuring delivery, sent within 30 days of the date of the

letter

notification from the Administrator, and

shall

must set forth any findings which are in dispute and the

reasons therefor

basis for such disputed findings, including any affirmative defenses to be raised.

(iii) Upon timely receipt of such request for a hearing, the Administrator

shall

will refer the case to the Chief Administrative Law Judge by Order of Reference,

to which shall be attached a

with an attached copy of the

letter

notification from the Administrator and the

response thereto,

responses of the contractor, subcontractor, responsible officers, or any other parties notified, for designation of an Administrative Law Judge to conduct such hearings as may be necessary to determine the matters in dispute.

(iv) In considering debarment under any of the statutes

listed in

referenced by § 5.1 other than the Davis-Bacon Act, the Administrative Law Judge

shall

will issue an order concerning whether the contractor

or subcontractor

, subcontractor, responsible officer, or any other party notified is to be debarred in accordance with paragraph (a)

(1)

of this section. In considering debarment under the Davis-Bacon Act, the Administrative Law Judge

shall

will issue a recommendation as to whether the contractor

or subcontractor

, subcontractor, responsible officers, or any other party notified should be debarred under

section 3(a) of the Act

40 U.S.C. 3144(b).

(2) Hearings under this section shall will be conducted in accordance with 29 CFR part 6 of this subtitle. If no hearing is requested within 30 days of receipt the date of the letter notification from the Administrator, the Administrator's findings shall will be final, except with respect to recommendations regarding debarment under the Davis-Bacon Act, as set forth in paragraph (a)(2) of this section.

(c) Any person or firm debarred under paragraph (a)(1) of this section may in writing request removal from the debarment list after six months from the date of publication by the Comptroller General of such person or firm's name on the ineligible list. Such a request should be directed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, and shall contain a full explanation of the reasons why such person or firm should be removed from the ineligible list. In cases where the contractor or subcontractor failed to make full restitution to all underpaid employees, a request for removal will not be considered until such underpayments are made. In all other cases, the Administrator will examine the facts and circumstances surrounding the violative practices which caused the debarment, and issue a decision as to whether or not such person or firm has demonstrated a current responsibility to comply with the labor standards provisions of the statutes listed in § 5.1, and therefore should be removed from the ineligible list. Among the factors to be considered in reaching such a decision are the severity of the violations, the contractor or subcontractor's attitude towards compliance, and the past compliance history of the firm. In no case will such removal be effected unless the Administrator determines after an investigation that such person or firm is in compliance with the labor standards provisions applicable to Federal contracts and Federally assisted construction work subject to any of the applicable statutes listed in § 5.1 and other labor statutes providing wage protection, such as the Service Contract Act, the Walsh-Healey Public Contracts Act, and the Fair Labor Standards Act. If the request for removal is denied, the person or firm may petition for review by the Administrative Review Board pursuant to 29 CFR part 7.

(d)

(1) Section 3(a) of the Davis-Bacon Act provides that for a period of three years from date of publication on the ineligible list, no contract shall be awarded to any persons or firms placed on the list as a result of a finding by the Comptroller General that such persons or firms have disregarded obligations to employees and subcontractors under that Act, and further, that no contract shall be awarded to “any firm, corporation, partnership, or association in which such persons or firms have an interest.” Paragraph (a)(1) of this section similarly provides that for a period not to exceed three years from date of publication on the ineligible list, no contract subject to any of the statutes listed in § 5.1 shall be awarded to any contractor or subcontractor on the ineligible list pursuant to that paragraph, or to “any firm, corporation, partnership, or association” in which such contractor or subcontractor has a “substantial interest.”

Interests of debarred parties.

(1) A finding as to whether persons or firms whose names appear on the ineligible list have an interest under 40 U.S.C. 3144(b) or paragraph (a

substantial interest, as appropriate)

) of this section in any other firm, corporation, partnership, or association, may be made through investigation, hearing, or otherwise.

(2)

(i) The Administrator, on

his/her

their own motion or after receipt of a request for a determination pursuant to paragraph (

d

c)(3) of this section, may make a finding on the issue of interest

(or substantial interest, as appropriate)

.

(ii) If the Administrator determines that there may be an interest

(or substantial interest, as appropriate),

but finds that there is insufficient evidence to render a final ruling thereon, the Administrator may refer the issue to the Chief Administrative Law Judge in accordance with paragraph (

d

c)(4) of this section.

(iii) If the Administrator finds that no interest

(or substantial interest, as appropriate)

exists, or that there is not sufficient information to warrant the initiation of an investigation, the requesting party, if any, will be so notified and no further action taken.

(iv)

(A) If the Administrator finds that an interest

(or substantial interest, as appropriate)

exists, the person or firm affected will be notified of the Administrator's finding (by certified mail to the last known address or by any other means normally assuring delivery), which

shall

will include the reasons

therefor

therefore, and such person or firm

shall

will be afforded an opportunity to request that a hearing be held to

render a decision on

decide the issue.

(B) Such person or firm

shall

will have 20 days from the date of the Administrator's ruling to request a hearing. A person or firm desiring a hearing must request it by letter or by any other means normally assuring delivery, sent within 20 days of the date of the Administrator's notification. A detailed statement of the reasons why the Administrator's ruling is in error, including facts alleged to be in dispute, if any,

shall

must be submitted with the request for a hearing.

(C) If no hearing is requested within the time mentioned in paragraph (

d

c)(2)(iv)(B) of this section, the Administrator's finding

shall

will be final and the Administrator

shall so

will notify the Comptroller General in cases arising under the DBA. If a hearing is requested, the ruling of the Administrator

shall

will be inoperative unless and until the

administrative law judge

Administrative Law Judge or the Administrative Review Board issues an order that there is an interest

(or substantial interest, as appropriate)

.

(3)

(i) A request for a determination of interest

(or substantial interest, as appropriate),

may be made by any interested party, including contractors or prospective contractors and associations of

contractor's

contractors, representatives of

employees

workers, and interested

Government

agencies. Such a request

shall

must be submitted in writing to the Administrator, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210.

(ii) The request

shall

must include a statement setting forth in detail why the petitioner believes that a person or firm whose name appears on the

debarred bidders

ineligible list has an interest

(or a substantial interest, as appropriate)

in any firm, corporation, partnership, or association

which

that is seeking or has been awarded a contract or subcontract of the United States or the District of Columbia, or

which

a contract or subcontract that is subject to the labor standards provisions of any of the statutes

listed in

referenced by § 5.1. No particular form is prescribed for the submission of a request under this section.

(4)

Referral to the Chief Administrative Law Judge.

The Administrator, on

his/her

their own motion under paragraph (

d

c)(2)(ii) of this section or upon a request for hearing where the Administrator determines that relevant facts are in dispute, will by order refer the issue to the Chief Administrative Law Judge, for designation of an Administrative Law Judge who

shall

will conduct such hearings as may be necessary to render a decision solely on the issue of interest

(or substantial interest, as appropriate)

. Such proceedings

shall

must be conducted in accordance with the procedures set forth

at 29 CFR

in part 6 of this subtitle.

(5)

Referral to the Administrative Review Board.

If the person or firm affected requests a hearing and the Administrator determines that relevant facts are not in dispute, the Administrator will refer the issue and the record compiled thereon to the Administrative Review Board to render a decision solely on the issue of interest

(or substantial interest, as appropriate)

. Such proceeding

shall

must be conducted in accordance with the procedures set forth

at 29 CFR

in part 7 of this subtitle.

[48 88 FR 1954157741, AprAug. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 82 FR 2226, Jan. 9, 201723, 2023]